In English law, there is no formal separation of public and private law, no constitutional court and before the enactment of the Human Rights Act 1998 there has been no catalogue of fundamental rights as it can be found in many continental European constitutional documents. The major source of fundamental rights in English law is now undoubtedly the Human Rights Act 1998 (HRA) which implements the European Convention on Human Rights (ECHR) into English law, which came into force on 2 October 2000.
In accordance with the doctrine of parliamentary sovereignty, the HRA has no higher status than other Acts of Parliament. It is not possible for courts to override primary legislation that is incompatible with convention rights, or to declare it unconstitutional. This is portrayed in s 4 of the act which empowers the courts to declare that primary legislation is incompatible with the ECHR. This declaration, however, does not affect the validity, continuing operation and enforcement of the provision in question which remains even applicable to the case in question.
The primary responsibility for ensuring compliance with the Convention is placed on 'public authorities', s. 6 HRA 1998. Section 6 (1) of the Human Rights Act states that 'it is unlawful for a public authority to act in a way which is incompatible with a convention right'. Section 6 (3) (b) further provides that 'public authority' includes 'any person certain of whose functions are functions of a public nature'. While it is clear which so-called 'pure' public are likely to be caught by the Act - for example, government, police, NHS trusts - it is extremely unclear which so-called 'functional' public authorities are caught, that is, those bodies that only sometimes exercise public functions.
It has become apparent that the courts are interpreting section 6 (3) (b) in a narrow fashion, leading to what has been called the 'protection gap'.1 what this refers to is the lack of protection for those persons in receipt of public services where a 'pure' public authority, such as a local authority, has contracted out the particular service (for example residential care) to a private sector body.
In Poplar Housing2 the Court of Appeal decided that a registered social landlord housing homeless persons on behalf of the London Borough Council of Tower Hamlets was a 'functional' public authority for the purposes of the Act. However, the Court of Appeal also held in the case of R v Leonard Cheshire Foundation, that a charitable trust providing residential care to people with disabilities on behalf of local authorities was not carrying out public functions and therefore not caught by section 6 (3) (b) of the Act. It could be argued that the courts have narrowed the definition of 'public authority' for the purposes of section 6 (3) (b) far beyond that which Parliament intended.
In times of war or other public emergency threatening the life of the nation, a contracting state may take measures derogating from its obligations under the Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. The results of the immediate after-math of September/11th were 'draconian' anti terrorist legislation. The provisions of the anti-terrorist measures conflict with human right issues, for example, Article 6 - fair trial.
A and others v Secretary of State for the Home Department,3 is one of the most important constitutional cases in recent years and the most important test of the HRA 1998 to date. In Lord Hoffmann's words, the case "calls into question the very existence of an ancient liberty of which this country has until now been very proud : freedom from arbitrary arrest and detention". The Anti-Terrorism Crime and Security Act (ATCSA) 2001 empowers the Home secretary to detain indefinitely, without charge, a person believed to be a terrorist and a risk to national security.
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A and others v Secretary of State for the Home Department,3 is one of the most important constitutional cases in recent years and the most important test of the HRA 1998 to date. In Lord Hoffmann's words, the case "calls into question the very existence of an ancient liberty of which this country has until now been very proud : freedom from arbitrary arrest and detention". The Anti-Terrorism Crime and Security Act (ATCSA) 2001 empowers the Home secretary to detain indefinitely, without charge, a person believed to be a terrorist and a risk to national security.
In order to protect the Act from challenge, the Government entered a derogation4 in respect of Article 5 of the European Convention on Human Rights. The legislation has been challenged in the courts under the Human Rights Act, and at first instance was found to be incompatible with Article 14 (the right to non-discrimination in respect of Convention rights) because it discriminated between nationals and non-nationals. This decision was overturned by the Court of Appeal, on policy grounds.
However, the House of Lords ruled that this amounted to a breach of Article 5 of the ECHR, which enshrines the right to liberty and Article 14, which prohibits discrimination in the right of Art 5 and other Convention rights. It was held that there is at present no public emergency threatening the life of the nation. Indefinite detention without charge or prospect of as trial is so severe a restriction on liberty as to be disproportionate and as it only applies to foreign nationals, the restriction of the right to liberty is discriminatory.
English law does not recognise a general right to privacy. Although different aspects of the right to personal autonomy and private life are protected by torts like defamation, trespass and nuisance, statutory provisions and the remedy for breach of confidence, the lack of a law of privacy was clearly shown in the famous case of Kaye v. Robertson.
In Douglas v. Hello! unauthorised wedding photographs of Michael Douglas and Catherine Zeta-Jones were obtained by Hello! Magazine and about to be published. Hello! Magazine was well aware that OK! magazine had entered into a commercial agreement with the couple and had bought the exclusive rights to photograph the event. The Court of Appeal declared that the case was more about privacy than confidentiality because the identity of the photographer at the reception seemed to be unknown to the defendant.
The case was finally decided in favour of the claimants on conventional breach of confidence grounds without recognising a private law right to privacy. 5As the claimants had provided for extensive security arrangements to keep their wedding private, everybody uninvited must have noticed that his/her presence and/or taking of photographs was forbidden. Consequently, there was a duty of confidence. Hello! was also subject to this duty because they knew about the exclusivity arrangements with OK! and even if they had not commissioned the photos, it was obvious also from the photos themselves that they had been taken secretly.
The coming into force of the HRA was seen as the long awaited chance for the creation of law of privacy. In Home Office v. Wainwright6 Mummery LJ and Buxton LJ expressed their preference for the continuing evolution of the common and statute law instead of the judicial development of a tort of invasion of privacy. The trial judge found in favour of the claimants and held that apart from not adhering to their own rules, the prison authorities had invaded the claimants' privacy by the search that exceeded what was necessary and proportionate.
The decision was quashed by the Court of Appeal and the claimants' appeal to the House of Lords dismissed. The issue before the House of Lords was whether Mrs Wainwright and her son were entitled to claim compensation for the distress suffered. They could do so only if the prison officers' unlawful conduct was a tort or breach of a statutory duty. Unfortunately for the claimants, the Human Rights Act was not in force at the relevant time. This meant that they could not rely upon a breach of the duty imposed by section 6 of that Act read with the Convention right to respect for private life. They therefore had to fall back on convincing the Law Lords of the existence of a common law tort.
Wainwright provided the Law Lords with an opportunity to develop the law, at least by way of dicta. The case did not raise sensitive issues about the balance between free speech and personal privacy. It concerned an intrusive strip search of the claimants conducted in breach of the relevant prison rules and without statutory authority.
To areas of law where the use of the HRA 1998 has brought about actual change in the law recognising individual rights, is rights of same-sex cohabiting couples and the rights of transsexuals. For many years following the decision in Corbett v Corbett, the principle is English law was that a person's gender is fixed at birth. Therefore, even if a transsexual had undergone full gender reassignment surgery, the law still regarded that person as having the pre-operative gender. The issue on marriage arose form s. 11 {c} of the Matrimonial Causes Act 1973 that a marriage was void unless the parties were respectively male and female. In Ballinger v Bellinger, the House of Lords decided that Corbett had correctly interpreted s. 11 {c} of the MCA 1973, but the provision was declared incompatible with the European Convention, breach of Art 8 (the right to family life) and Art 12 (the right to marry).
The probably clearest decision under the human rights act (s.3) pointing at (indirect) horizontal effect is the Court of Appeal's decision in Mendoza v Ghaidan7 which has been celebrated as a considerable victory over homosexual-discrimination.
Mr. Mendoza and Mr. Walwyn-Jones had lived together in a homosexual relationship since 1972 until Mr. Walwyn-Jones' death. Mr. Walwyn-Jones had been the statutory tenant. According to paragraph 2 (1) of Schedule 1 to the Rent Act 1977 the right to a statutory tenancy passes to a surviving spouse. When this paragraph is not applicable, according to paragraph 3 (1), a 'family' member who has been residing with a tenant for two years before his/her death may enjoy the lesser protection of an assured tenancy.
The court concluded that the words 'as his or her wife or husband' should be read 'as if they were wife or husband', consequently including same-sex partners. This interpretation of the Rent Act complies with Art 8 of the Convention and s 3 of the HRA. The cases of Bellinger and Mendoza illustrate how the rights of individuals have been protected under the HRA 1998. The effect of the decisions in both cases was to make reforming legislation inevitable.8
R v Secretary of State for the Home Department, ex parte Daly [2001]9 a prisoner claimed that searches of legally privileged correspondence in his cell, carried out in his absence, violated his rights under Article 8. The House of Lords, allowing his appeal, recognised the need for these searches to take place and - on occasion - to take place in the prisoner's absence. But it held that the policy of routinely excluding all prisoners during these searches could not be justified. The infringement of the prisoner's rights represented by the policy was greater than the legitimate public objectives behind it. In short, it went further than necessary.
Article 10 of the ECHR protects freedom of expression. The European Court has repeatedly stressed its importance. For example in Handyside v UK10 it stated: "Freedom of expression constitutes one of the essential foundations of [democratic] society, one of the basic conditions for its progress and for the development of every man". Thus the justifications for strong protection of freedom of expression stressed by the Strasbourg jurisprudence centre on its role in the protection and fostering of democracy and in its role as a necessary prerequisite of individual self-fulfilment.
Freedom of political expression generally receives a very high degree of protection from the courts. Political expression in the UK's broadcast media, by comparison, receives far lower levels of protection. This has been graphically demonstrated recently by the decision of the House of Lords in R (on the application of Pro-Life Alliance) v BBC 11is perhaps the most important decision on freedom of speech since the HRA came into force. the case was about the censorship of political speech at election time. There was nothing gratuitous or sensational or untrue about the intended broadcast of graphic images of abortion and aborted foetuses. The BBC refused to permit the material to be broadcast on grounds of taste and decency. A unanimous Court of Appeal held that the decision involved an unjustified prior restraint on freedom of political expression.
Since the Human Rights Act 1998 (HRA) has been in force a kind of domestic counterpart of the Strasbourg 'margin of appreciation' doctrine has emerged: a so called 'doctrine of deference' whereby judges will defer either because of the democratic credentials of the decision maker, or because the decision falls outside their recognized area of competence, for example in national security, social policy or economic areas. One would have expected that the degree of deference to be shown by the court to a decision maker purporting to restrict political expression would be very limited
A majority of the House of Lords interpreted the case as involving a challenge to the BBC's responsibility to ensure that programmes do not infringe taste and decency. In fact, however, the Pro-Life Alliance had argued that the taste and decency rule as applied in a party election broadcast infringed freedom of political speech. Professor Barendt12 has argued, that the House of Lords failed to comply with the obligation imposed by section 3 of the Human Rights Act to interpret the broadcasting legislation compatibly with the Convention rights of the Pro-Life Alliance and the public. It was, as Professor Barendt observes, "a bad day for free speech".
Various arguments have been advanced justifying the existence of a right to freedom of expression over the last 150 years. Foremost amongst these have been the arguments from truth, self-fulfilment and democracy (see Schauer 1980; Barendt 1985, ch 1). The argument from truth is famously associated with John Stuart Mill's On Liberty of 1859. Mill argued that the pursuit of truth was of overriding importance for the development of society and the best way to arrive at the truth is to allow freedom of discussion and debate (see Mill 1980; Schauer 1980, ch 2; Barendt 1985, pp 10-14).
The consequences of the ProLife decision are far more wide-ranging than the ongoing debate about abortion: a party wishing to campaign on an anti-war stance by showing the horrors of war; or a pro-war stance by showing the evils perpetrated by the target regime; or vegetarianism by showing the butchery of the abattoir; or the death penalty by showing the actuality of execution are all denied the ability to use the broadcast media to its full effect to convey their message.
For individuals the HRA 1998, on the one hand it could be argued has been a protective instrument, as they are now able to raise human rights issues, at least as defined by the Convention before the ordinary courts, and certain rights are being upheld, even if they are not upheld in every case. Therefore, it could be argued that the HRA 1998 appears to have a significant and positive effect on the development of civil liberties in the UK. However, there are rights which are still limited, for example, free speech is still the subject of controls which can be regarded as excessive in relation to official secrets, and the censorship of films. The freedom to engage in public protest operates within in framework which is the subject of close supervision by the police.
R v Servite Houses and another, ex parte Goldsmith and another [2001] LGR 55
2 Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] 33HLR 823-846
3 [2004] UKHL56
4 Schedule to the Human Rights Act 1998 (Designated Derogation) Order 2001. Derogation isonly permitted under Article 15 of the Convention in " time of war or other public emergencythreatening the life of the nation... to the extent strictly required by the exigencies of the situation.."
5 Douglas and other v. Hello! Ltd and other [2003] All ER 209
6 Wainwright and another v Home Office [2003] UKHL 53.
7 [2002] Ch 380
8 Gender Recognition Act 2004, and the Civil Partnership Act 2004
9 2 AC 532 (HL).
0 [1979-80] 1 EHRR 737 para 49
1 R (ProLife Alliance) v British Broadcasting Corporation [2003] 2 WLR 1403.
2 Eric Barendt, Free Speech and Abortion [2003] P.L 580.
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